Bard Hernia Mesh Lawsuits Remain Set For Bellwether Trials in May, July and September 2020

The U.S. District Judge presiding over all federal Bard hernia mesh lawsuit indicates that the first bellwether trials will begin in May, July and September 2020, after retracting a prior order issued last week, which would have delayed the start of the trials several months.

C.R. Bard currently faces more than 3,500 product liability lawsuits filed throughout the federal court system, each involving similar allegations that painful complications were caused by design defects associated with Bard Ventralex, Bard Perfix, Bard Composix and other polypropylene products sold in recent years.

Given similar questions of fact and law raised in the lawsuits, all federal Bard hernia mesh claims have been centralized before U.S. District Judge Edmund A. Sargus in the Southern District of Ohio, for coordinated discovery and pretrial proceedings as part of an MDL, or multidistrict litigation

Judge Sargus previously established a bellwether program, where a small group of representative claims are being prepared for early trial dates to help the parties gauge how juries may respond to certain evidence and testimony that is likely to be repeated throughout the litigation.

In a case management order (PDF) issued on August 15, Judge Sargus amended a prior schedule for completion of discovery in the cases, which resulted in the start of three test trials being delayed until July 13, 2020, September 14, 2020 and November 9, 2020. However, only a few days later, Judge Sargus rescinded the portion of the award that impacted the trial dates.

“The Court recognizes that all parties and counsel are moving very diligently and professionally in these cases, which now number in excess of 3,500 civil suits,” Judge Sargus wrote in a new court order (PDF) issued on August 19. “The Court cannot accommodate the proposed changes in trial dates. Additional, but time-limited staffing has been requested for these cases. Other pending cases cannot be scheduled for trial if MDL Bellwether trials are not firmly given certain dates.”

As a result, Judge Sargus indicates that the first trials will begin on May 8, 2020, July 13, 2020, and September 14. 2020. While the parties have been invited to submit new dates for other deadlines, the Court indicates that it will not revise or delay the start of these trials.

Each of the cases raise similar allegations that problems with polypropylene mesh used in Bard hernia repair products was unreasonably defective and dangerous, creating a risk of painful and debilitating complications where the mesh may fail and requires individuals to undergo additional surgery to remove the patch from their body.

Similar consolidated pretrial proceedings have also been established for Atrium C-Qur lawsuits and Ethicon Physiomesh lawsuits, which involve competing hernia repair products that have also been linked to a high rate of failure and problems. The first bellwether trial dates in each of these other MDLs are expected to begin in early 2020.

While the outcomes of these “test” trials will not be binding on other claims, they may help the parties determine the relative strengths and weaknesses of cases, and facilitate hernia mesh settlements with Bard and other manufacturers, which would avoid the need for hundreds of individual cases to be scheduled for trial over the coming years.